[1] This is an appeal by the appellant against the whole decision of the Court of Appeal in dismissing the appellant's appeal against the decision of the High Court at Sandakan. The High Court had dismissed the appellant's application to set aside the certificate of non-appearance dated 16 February 2011 and the judgment in default of appearance ("JID") entered by the respondent against the appellant and for the appellant to be granted leave to file and serve its statement of defence within two weeks from the date that the statement of claim is served on them and for a further order that the hearing for assessment of damages be set aside. The appellant was the defendant and the respondent was the plaintiff before the High Court. For convenience the parties will be referred to as they were before the High Court.

Leave To Appeal

[2] This Court granted leave to the defendant to appeal against the decision of the Court of Appeal on the following two questions of law:

(1) Where a writ is indorsed generally with claims for damages and restraining order, whether it is mandatory for the plaintiff to serve a statement of claim on the defendant and to proceed with the action as if the defendant